By Joseph M. Cooper and Meghan E. SiketRhode Island employment lawEmployers often will seek to end employment lawsuits before trial using a procedural device called a “motion for summary judgment,” essentially asking the judge to decide, without a trial, to dismiss the case because it lacks any legal merit.

    However, the U.S. District Court for the District of Rhode Island recently declined to grant summary judgment to an employer in a sex discrimination case and cautioned employers that it may be less likely to grant summary judgment on sex discrimination claims going forward because it prefers to allow a cross-section of the community represented on a jury, rather than a single district judge, to decide such cases.

    ‘You want the job? It’s yours!’

    Judy Colman was an assistant girls’ lacrosse coach at Portsmouth High School in February 2010 when she applied to fill the vacancy left by the head coach’s resignation. Before the vacancy was posted, Portsmouth community member Michael Borrosh approached the high-school athletic director and expressed interest in the vacancy. The athletic director informally offered the position to Borrosh on the spot.

    Portsmouth posted the coaching vacancy online on February 21, 2010. The job posting listed “coaching experience” as the only qualification, with no additional details about the job requirements.

    At the time, Colman was the head coach of the Portsmouth girls’ tennis team and had served as a volunteer assistant coach for the girls’ lacrosse team during the previous season. She applied online when the head coach vacancy was posted, but she was never interviewed.

    During the hiring process, the athletic director never asked the outgoing head coach about Colman’s performance as assistant. Instead, Borrosh was brought in for an interview and hired as the girls’ varsity coach on February 25, 2010. Only after offering him the head coach position did the athletic director instruct Borrosh to carry out the formality of completing the application.

    Borrosh submitted an online application several days after being hired, although he never submitted the required résumé and two letters of recommendation. Other than Borrosh, no one else was interviewed for the head coach vacancy. His name was submitted to the school board several weeks later, in mid-March 2010, and the board approved his hiring.

    After her application was rejected in favor of a man with no lacrosse coaching experience, Colman sued the town of Portsmouth as well as its finance/personnel director and the school’s athletic director. She claimed the decision not to hire her as the head lacrosse coach was motivated by her gender.

    Colman at least as qualified as man who was hired

    When Colman was passed over for the head coach vacancy, she had a BS in recreational leadership from Ithaca College, held all of the certifications Portsmouth required of its coaches, and had completed the work needed for the U.S. Women’s Lacrosse Level 1 Coach’s Certificate. According to the outgoing head coach, she had performed well as a volunteer assistant coach of the girls’ lacrosse team during the previous season.

    In addition, Colman had been successful as head coach of the Portsmouth girls’ tennis program since 2008, leading the varsity team to the division championship. Moreover, she was the parent of two talented girls’ lacrosse players, which the outgoing head coach noted had given her a knowledge of the game and an understanding of the needs of the girls playing it.

    Borrosh had no previous lacrosse coaching experience. Like Colman, he has daughters who play lacrosse. Unlike Colman, he had played men’s lacrosse for 2 years in high school, part of his first year in college, and recreationally after that. In addition, he had a lengthy military career, which the town saw as evidence of his leadership skills.

    To survive summary judgment, Colman needed to show not only that she was qualified for the job she sought but also that a person with equal or inferior qualifications was hired instead. When weighing Colman’s experience against Borrosh’s, the court found that their résumés were “different and difficult to compare” because the only qualification in the posted job description was “coaching experience.”

    The court held that without any objective criteria for what “coaching experience” meant, the town could not demonstrate by undisputed factual evidence that Borrosh had superior qualifications. As a result, the court found Colman to be at least as qualified as Borrosh for the position.

    ‘Stark’ track record evidence of discrimination

    The court also found that the record contained enough factual evidence for Colman to convince a jury that Portsmouth’s reasons for not hiring her were a mere pretext, or excuse, for gender discrimination.

    For example, the town claimed that Borrosh was hired without any competitive process because lacrosse season was nearly upon it and there simply was insufficient time to consider any other applicants. But the court rejected that explanation, noting that (1) the athletic director himself admitted the entire hiring process could have been accomplished in one week’s time and (2) approximately 19 days had passed between the coaching vacancy opening up and the position being formally filled, leaving ample time to interview additional candidates.

    Most significant, Colman produced records showing that from 2009 to 2013, Portsmouth High School didn’t interview a single woman for an athletic coaching job, even though 12 women applied for six different coaching positions.

    A review of the female candidates’ résumés, along with “the stark reality that not a single woman was granted even an interview over nearly a 4-year period,” raised legitimate questions about whether discriminatory animus, not merely job qualifications, was at play when the town chose not to interview or hire female applicants, including Colman.

    Other evidence supported Colman’s allegation that there were systemic issues restricting women from being hired at Portsmouth. In 2009, four men and three women applied for the head coaching job of the girls’ soccer team. None of the women was interviewed. Two of the female candidates each had 14 years of coaching experience.

    The town hired a male applicant who listed neither coaching nor playing experience but had a career in the military that supposedly demonstrated leadership skills. The court noted the problematic nature of using military service as a proxy for coaching and leadership experience because an “overwhelming number of people with military experience [are] men.”

    That evidence, coupled with other facts in the record, convinced the court that Colman may be able to persuade a jury that Portsmouth’s reasons for not hiring her were a pretext for gender discrimination.

    Court reluctant to dismiss sex bias claims

    In addition, the court quoted from a growing body of legal research to voice its concerns about the possible overuse of summary judgment in “cases involving women . . . where legal arguments are frequently novel and innovative, where subtle issues of credibility, inferences, and close legal questions may be involved, [and] where issues concerning the ‘genuineness’ or ‘materiality’ of facts are frequently intertwined with law.” In such cases, research has shown that summary judgment is more likely to be granted to employers in discrimination cases involving female employees or job applicants.

    For that reason, the district court concluded that “a single district judge [granting summary judgment] may be a less preferable” outcome than a verdict by a cross-section of the community in a jury trial. Consequently, the court declined to grant Portsmouth’s request for summary judgment on Colman’s gender discrimination claims. Colman v. Faucher, 2015 U.S. Dist. LEXIS 121663 *26-27 (D.R.I., Sept. 11, 2015).

    Bottom line

    This decision is yet another reminder that you can significantly limit your exposure to employment discrimination claims by ensuring that all hiring decisions are made through competitive, transparent, and well-documented processes. You should actively identify whether your hiring practices have the unintentional effect of excluding certain protected groups, such as women or people of color.

    In this case, Colman was able to demonstrate a glaring difference between the hiring of male and equally (if not more) qualified female coaches over a period of years. The court, already reluctant to grant summary judgment on employment discrimination claims, concluded that such a gender imbalance could constitute evidence of intentional sex discrimination. It therefore permitted the case to go forward to a jury trial.

    Meghan E. Siket ( is a Partner at Whelan, Kinder & Siket LLP and an editor of Rhode Island Employment Law Letter.